concurring in part and dissenting in part.
I am well aware that G.S. 7A-34 confers upon our Supreme Court the right to prescribe rules of practice and procedure for the trial courts which are supplementary to enactments of our General Assembly. I also understand that in State v. Bennett, supra, our Supreme Court ruled that pursuant to Rule 21 the trial court must hold an unrecorded instruction conference in every case.
Moreover, our Supreme Court in Bennett went on to say that the statute compels the trial judge to hold a recorded conference when requested by either party.
I do not believe, however, absent “plain error,” in a case such as the one at bar where it would appear from the record that the trial judge committed no other error than failure to conduct the instruction conference, and further appearing that the defendant received as fair a trial as was humanly possible, that we should grant defendant a new trial because of the court’s failure to hold the instruction conference. Respectfully, I therefore dissent from that part of this opinion awarding a new trial for failure to hold an instruction conference. I concur in the remainder of the opinion.